A giant middle finger to the ex-wife

Fox News Detroit reports that recently divorced Alan Markovitz purchased a home next door to his ex-wife’s home.  Set aside the immediate thoughts of “why would anyone in the world want to live next door to their ex” for a second.  Moving in was merely step 1.

For step 2, Markovitz installed a twelve foot tall statute of a hand shooting the bird and pointed it toward the ex’s home.  For some reason, the news stories blur out the middle finger.  Miley Cyrus and her lizard tongue twerking on public television is acceptable, but a giant middle finger is obscene for some unknown reason.

So what is step 3?  No house with a 12 foot tall bird shooting hand statute next door to an ex-wife would be complete without a huge spotlight.  Now the ex can view the statute any time, day or night.  How thoughtful.

When you go through a divorce, let it end.  Do not carry this sort of hate or need for revenge around.  Don’t be the guy that pays alimony with pennies.   Many of the 41 things you shouldn’t do during your divorce apply equally after your divorce.

 

Words that will get you fired

A small lesson for employees out there.  Never tell another employee “I’m going to kill you and I know how to do it” and then complain of discrimination when you get fired.  That appears to be the unsuccessful tactic employed by Robert Ray in an employment discrimination case against the GEO Group.   You can read the full opinion here.  Employment cases are difficult even under the best of circumstances.  This case was dead on arrival.

Excellent advice from a Chancellor about visitation

Chancellor Primeaux offers wisdom from the bench about helping divorced parents ease the pain of visitation.   Far too often parties to a divorce carry aggression or resentment from the divorce process into the post divorce setting and use visitation to remedy some perceived wrong.  While it may hurt the other parent, the real loser is the child.

Looks like a few tickets were handed out

One of the interesting parts of having a blog is seeing the search terms people use to reach my site.  By the looks of the search terms, a number of people arrived at my site yesterday trying to find out the cost of a ticket in Mississippi for hunting doves over bait.  The answer to the question of “what does it cost?” is “it depends.”

It depends on which county you were in, it depends on whether the law enforcement officer that issued the citation is a state or federal employee and it could also depend on whether you were simply a hunter in a baited field or if you were the landowner than illegally baited a field to make a profit.  There are many considerations.

If you were issued a hunting related citation and think that it was unjustified, find an attorney that routinely handles criminal law in the area where you were issued the citation.  Our law firm does not handle criminal cases, but I can point you in the right directed of a good criminal lawyer if you do not know of one.

On the other hand, if you were wrong and know you were wrong, take your medicine.  Live and learn.  Next year, follow the brochures I discussed from the Mississippi Department of Wildlife Fisheries and Parks and the US Fish and Wildlife Service.  I don’t doubt that there are legal ways to push the envelope, but if you stay within those guidelines you will not have to search the internet for the cost of a ticket.

2013 Dove Season in Mississippi

The first hunt of the year is just around the corner.  Dove season opens in Mississippi on Sunday, September 1, 2013 at 2:00 p.m.  You read that correctly.  The pastors of rural churches can hold their services in peace because there will be no opening morning hunt.

Every year, folks try to evade the baiting laws on dove and every year people get tickets.  If you have to think very hard to justify what you are doing to attract doves, it is likely that your field is illegal.  In the past month, members on various Mississippi hunting forums have expressed opinions or ideas about how to hunt doves.  Those ideas range from good to downright illegal.  One guy mentioned feeding doves by placing tarps containing wheat in the field and removing the tarps the night before the hunt.  That is about as illegal as you can get.  Pursuant to 50 CFR 20.11 (j) an area is considered baited for ten (10) days after all grain is removed.

So exactly what is legal when it comes to hunting doves?  Take a look at 50 CFR 20.11.   I would recommend reading the entire thing, but it that proves difficult for you, at least read this handy synopsis from the US Fish and Wildlife Service.  The Mississippi Department of Wildlife Fisheries and Parks also has a brochure for dove field preparation.

There are a number of ways that a dove hunter can go astray of the federal rules and any of the following could result in a ticket:

• placing rock salt out for doves
• top sewing wheat at rates in excess of a normal agricultural practice
• scattering shelled or cracked corn
• hunting an area that was baited within the previous 10 days
• scattering bird seed for doves

Those are just a few of the ways you could get in trouble.  It is easier to tell you how to legally hunt doves than think of every way to break the law.  For example, you could legally disk the ground and top sow wheat the the normal agricultural rate.  You could plant a wheat field, allow it to head out and then burn it a few weeks prior to season leaving wheat on burned ground.  You could plant sunflowers and begin disking strips to expose sunflower seeds a few weeks prior to the opening day.  Plant and harvest a millet field.  Plant a foodplot for deer at the recommended rate.

Recommended rates and normal agricultural processes are defined in Mississippi by the official publications of the Mississippi State University Extension Service.  Arguing to a wildlife officer that your field isn’t baited because farmer Jim down the road routinely plants wheat at one ton per acre for his cows isn’t going to work.

While you are shooting doves, remember that a dove is not worth shooting someone.  Beware of low birds or you could easily blind someone. Think about how often kids are the ones running out to pick up birds. How would you feel shooting a kid? Let the low birds go. This is particularly important in standing sunflower rows that can hide another hunter.

On a related safety note, take plenty of water in the field for kids and your four legged companions.   Kids and dogs can overheat in the hot sun before you know what happened if you aren’t paying very close attention.  Check out these tips from Sportdog about dogs and dove hunting.

Good luck everyone!

Uninsured and Underinsured Motorist Litigation from A to Z

Block out September 18, 2013 on your calender and join us at the Jackson Convention Complex for NBI’s Uninsured and Underinsured Motorist Litigation from A to Z.  Drew Malone, Robert Boyd, Michael Simmons and I will be speaking on the following:

Course Content

1. Difficult Scenarios of Insurance Coverage Interpretation
2. Stacking UM/UIM Coverage
3. Prosecuting and Defending UM/UIM Cases
4. Discovery, Evidence and Experts
5. Settlement and Trial
6. Damages, Offsets and Liens – Overcoming Challenges
7. UM/UIM Ethical Considerations
8. Legislative Update, Current Trends and Case Law

Hope to see you there!

A list without Jackson, Mississippi at the bottom!

Allstate released its “2013 Best Drivers Report” and it appears Jackson, Mississippi came in 92nd place.  You can download the entire report here.  Interesting items from the report according to Allstate:

• Best drivers are in the cities of (1) Fort Collins, CO, (2) Boise, Idaho, (3) Sioux Falls, CD, (4) Brownsville, TX and (5) Madison, WI.
• At the bottom of the list were the cities of (194) Washington, D.C., (193) Baltimore, MD, (192) Providence, RI, (191) Hialeah, FL, and (190) Glendale, CA.

Jackson’s ranking of 92nd correlated to an average years between accidents of 9.4 compared to Fort Collins, CO’s 13.9 and Washington, D.C.’s  4.8.  You read that correctly.  A driver in D.C. on average has a wreck every 4.8 years.  Insane.

Jackson’s relative accident likelihood came in at 5.9% meaning a driver in Jackson is 5.9% more likely than the national average to have a collision.  A driver in D.C. is 109% more likely than the national average to have a wreck.  Remind me never to drive in D.C.

The take away from this report is that Jackson has decent drivers.  Certainly not the best, but a heck of a lot better than D.C., Atlanta, Houston, Chicago, New York, Oakland, Tampa, L.A., and Miami.  The fact that we have decent drivers is good news given that Mississippi leads the nation in uninsured motorists with 28% lacking liability coverage.

Allstate’s numbers show the average driver in Jackson will go 9.4 years between wrecks.  When that wreck occurs, there is better than a 1 in 4 chance that the at fault driver will lack liability insurance.  Compared to other types of insurance, uninsured motorist coverage (UM) is very cheap.  Don’t gamble with your future.  Call your insurance agent.  Buy all the UM coverage you can and NEVER waive UM coverage.   If an uninsured driver hits you and you lack sufficient UM, you could face bankrupting doctor bills and loss of wages.  Protect yourself and protect your family.

Eric Solotoff explains “how not to settle your divorce case”

Eric Solotoff is a partner at FoxRothschild in New Jersey.  There are significant differences between Mississippi and New Jersey with respect to everything the laws concerning divorce, child support and alimony.  However, these common sense suggestions of “how not to settle your divorce case” apply everywhere.

Ask Randy v2

My second installment of Ask Randy.  Version 1 can be found here and as with v1, this is a combination of Dear Abby, ask a friend and general legal advice.  If you have a specific legal issue contact an attorney licensed in your state for your specific issue.  As always, keep this legal notice in mind.

These are actual search terms that someone sat down and typed into google.com or some other web search engine to arrive at my blog.

• how to ask your cheating wife for a divorce

“Honey, you have been a warm, caring and loving wife, but I am ready to move on.  Would you please sign these papers?”  Seriously, if she is cheating and you want a divorce, go see a lawyer and ask him to get the ball rolling.

• before divorce final can kids be around his new girlfriend

They CAN, but it is a really, really bad idea.

•  is it ok to take help from your mean ex husband

Sure, you can accept help from anyone.  Help is a gift.  Now if the ex husband is expecting something in return for the gift, you should probably reassess your options.

•  can you destroy your spouses personal property during a divorce

Sure.  However, the Court may require you to pay for the property you damage.  If you were under an order to produce the property, the Court may find that your actions were taken in contempt of court.  Just don’t do it.

•  is it aceptable to divorce if your spouce got someone pregnant

It is not only acceptable, it is generally encouraged.

•  can you give your spouse all of your retirement in a divorce

Sure.  There is noting prohibiting you from giving anyone anything.  In fact, you could even give your retirement to me so I could further my hunting and fishing activities if that is what you want to do.  Keep your retirement.  If you live long enough, you will need it.

•  can you make payments to your lawyer for a divorce case

Yes.  Lawyers, like most people that are owed money prefer timely payments.

• how to get everything in divorce if gambling addiction is found out

Invest in the casino?  If there is a serious gambling addiction, there isn’t going to be much to get.  Go see a lawyer and if the money wasted at the casino is significant, consider hiring a forensic accountant or CPA to track the wasted family assets.

• how to prove ur girlfriend that u r divorced

Show her your divorce documents.

• what happens when you give a divorce proposal to the attorney

Typically, he/she will draft a settlement proposal and send it to the attorney on the other side.   The attorney on the other side may or may not accurately relay the offer to the client.  At some point, the parties either reach agreement, go to trial or the divorce case is dismissed.

•  how to handle a cheating wife who hates you and wants a divorce

Give her the divorce.  No need to be miserable.

•  soon to be ex wife keeps threatening me with her lawyer

Take away the threat.  Consult with an attorney, make a reasonable offer to end the matter and be prepared to go to trial if she doesn’t accept.  Simple as that.

•  using fake cashiers checks to claim payment on child support

Excellent way to end up in jail.

•  when your ex doesn’t want to be friends and you have kids

You and your ex do not need to be friends.  You need to be parents.  There is no requirement that formerly married people remain friends and in many cases it simply isn’t possible.  Discuss your children, parenting, schooling and leave it at that.  It is time to move on.

•  do you have to talk to your ex husbands new wife cuz you have kids

It would certainly make life easier, but keep the conversations strictly limited to the kids.  Pick-up and drop off times, visitation schedules, medical care for the child, etc.  You don’t have to be friends (see above).

• can wife change facebook status to single before divorce is final

Yes.  In fact, she could change her facebook status prior to the divorce being final to reflect that she is in a complicated relationship with a turtle if she wanted to.  If if makes your soon to be ex spouse happy, let her go for it.  So long as she is happy, she isn’t focused on making you unhappy.

• what can i do if my divorce lawyer does not have my best interest in mind

Either trust your lawyer or find a new one you can trust.

• if you remarry your ex will you have to go through all the custody if you divorce again

Typically, yes.

• in a divorce which is worse adultery cases or irrational differences
  

I would guess that it depends on how irrational the differences are.  In Mississippi, being able to prove a basis for your divorce such as adultery simply entitles you to a divorce.  It doesn’t entitle you to all the assets or the kids.  The fault based grounds for divorce are not ranked.  Adulterers and drug addicts are both entitled to an equitable distribution of the marital estate during a divorce.

• defense alienation of affection mississippi

The absolute best defense is to be able to prove you didn’t do it.  Alienation of affection is still alive and well in Mississippi and can cost you more money than you want to pay out.  The elements of proof for an alienation of affection case are “(1) wrongful conduct of the defendant; (2) loss of affection or consortium; and (3) causal connection between such conduct and loss.”  Fitch v. Valentine, 959 So. 2d 1012, 1025-26 (¶36) (Miss. 2007).  Therefore, you had best be able to prevail on one of those three prongs.  As a practical matter, alienation of affection cases that go to trial often result in a jury verdict against the defendant.  As noted by Philip Thomas, plaintiffs in these cases had a 6-0 trial record in Mississippi over the previous two years.

HIPPO, HIPPER, HIPPA, HIPAA……..whatever you call it

The Health Insurance Portability and Accountability Act of 1996 is known as HIPAA.  Over the past decade I have heard it cussed, discussed, and mispronounced more times than I can count.  The primary goals of HIPAA were to (1) make it easier for people to keep health insurance, (2) protect the confidentiality and security of healthcare information and (3) help the healthcare industry control administrative costs.  There is even a section of HIPAA dealing with “administrative simplification.”  Anyone that has spent any amount of time sorting through HIPAA would be hard pressed to honestly say that it simplifies anything.

Of those three goals of HIPAA, only one impacts my law practice daily.  The security and confidentiality of healthcare information.  Medical providers are required to maintain the privacy of their patient’s medical records and can not release the records without a valid authorization.  Every time we request medical records of our clients from their healthcare providers, we must submit a HIPAA compliant authorization.

But what happens if a medical provider releases information protected by HIPAA without an authorization?  HIPAA provides civil penalties for non-compliance ranging from $100 a day up to $50,000 a day with a calender year cap of $1,500,000.  There are also potential criminal penalties with fines up to $250,000 and jail time up to ten years depending on the type of wrongful conduct and the criminal intent behind the violation.

Despite the potential for significant penalties, HIPAA has for the most part been a toothless tiger because the Courts have typically found that there is no private cause of action under HIPAA.  Dean v. City of New Orleans, 2013 U.S. App. LEXIS 9106 (5th Cir. La. May 3, 2013)(citing Acara v. Banks, 470 F.3d 569, 572 (5th Cir. 2006).  In simple terms, that means that Sally can’t sue her doctor for a HIPAA violation if her doctor discloses the fact that she had two abortions, has a nasty a cocaine habit and three sexually transmitted diseases.  Given the lack of a private cause of action, only the US Department of Health and Human Service through the Office of Civil Rights can seek to directly enforce HIPAA.  Enforcement actions by the Department of Health for individual violations are so rare that I have never heard of one.

However, based on the recently reported Indiana Superior Court case of Hinchy v. Walgreen Co. and Peterson, it appears persons injured by the release of their confidential medical information may yet have an avenue to vindicate privacy rights.  Rather than using HIPPA as a cause of action, an injured party can allege that the HIPAA violation is evidence the medical provider committed negligence or violated a professional standard of care.

Sure, it sounds like semantics.  However, if attempting to plead a HIPAA violation results in a case dismissed, but pleading negligence based on violations of HIPPA as a standard of care results in a $1.4 million dollar jury question (as it did in Hinchy), which one do you think plaintiffs will pursue?  Given the comprehensive nature of HIPAA, expect to see preemption arguments against state court negligence actions involving HIPAA violations on the horizon.